Protecting the Religious Liberty of Virginia’s Public School Students

by Rebecca Glenberg, ACLU of Virginia Legal Director

In recent years, we have seen repeated efforts to pass legislation that purports to protect individual religious expression, but instead diminishes religious freedom by allowing government to force religion on unwilling listeners. The latest such effort is Senate Bill 236.  While its supporters tout the bill as protecting public school students’ freedom of expression, its actual effect will be to require students to submit to coercive prayer and proselytizing at school events.

The bill contains two parts.  The first part says that students in public schools may engage in religious expression to the same extent that they may engage in nonreligious expression, and that they may form religious clubs to the same extent that they may form nonreligious clubs.   The ACLU of Virginia supports students’ religious speech, and has repeatedly acted to defend it.  For example, we have opposed public schools’ attempts to prohibit students from wearing rosaries to school or from posting the Ten Commandments on their lockers.  But the First Amendment to the U.S. Constitution already forbids schools to treat religious expression differently from other forms of expression. The federal Equal Access Act requires high schools to allow students’ religious clubs the same privileges afforded to secular clubs. And Virginia statutes already explicitly protect students’ right to pray and to express religious views in their homework.  In addition to these legal protections, Virginia’s Board of Education has developed extensive guidelines for school divisions – explaining students’ right to religious expression.

While the first part of SB 236 is simply unnecessary and confusing, the second part actually invites schools to violate students’ right to be free from coerced participation in religious activity.   The bill would require schools to allow student prayer at official school events such as graduations, assemblies, and sporting events, where students are a captive audience.  As the U.S. Supreme Court has recognized with respect to prayer at graduation:  “Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma. . . . What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.”

When a prayer is delivered as part of an official school event, the unmistakable implication is that the school approves of the religious message of the prayer, even if the prayer is delivered by a student.  That is why the Supreme Court has held that prayers delivered by a student at a football game are unconstitutional, even when the speaker was selected by the student body:

Once the student speaker is selected and the message composed, the invocation is then delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property. The message is broadcast over the school’s public address system, which remains subject to the control of school officials. It is fair to assume that the pregame ceremony is clothed in the traditional indicia of school sporting events, which generally include not just the team, but also cheerleaders and band members dressed in uniforms sporting the school name and mascot. The school’s name is likely written in large print across the field and on banners and flags. The crowd will certainly include many who display the school colors and insignia on their school T-shirts, jackets, or hats and who may also be waving signs displaying the school name. It is in a setting such as this that “the board has chosen to permit” the elected student to rise and give the ”statement or invocation.”

The bill attempts to skirt these Supreme Court precedents by requiring schools to create a “limited public forum” at every school event that has a student speaker.  The idea comes from Supreme Court cases saying that when the government makes a “forum” available to a broad range of speakers, nothing those speakers say may be attributed to the government.  For example, if a university makes funding available for all student magazines, it is not unconstitutional if one of those magazines has a religious viewpoint.

But it makes no sense to apply the notion of “limited public forum” to graduations, assemblies, and other school events.   True “limited public forums” are “generally available” to the public at large or to a large class of speakers.  In order to create such a forum, the school would have to open the event to indiscriminate use by the student body generally or a broad class of students.  The Supreme Court has observed that “[s]elective access does not transform government property into a public forum.”  If a school selects just one student – e.g., the class valedictorian, or a class speaker elected by the student body – to speak at an event, it has not created a limited public forum.  Serious application of the “limited public forum” doctrine would transform graduations, assemblies, and other events into free-for-alls for student expression, and would impose an administrative nightmare on schools every time they want to hold such an event.

SB 236 has already passed the Senate.  It should go no further.  Urge your Delegate to protect students’ religious freedom by opposing SB 236.

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